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EU Security Governance and Financial Crimes

Published online by Cambridge University Press:  06 March 2019

Els De Busser
Affiliation:
Cyber Security Governance at the Institute of Security and Global Affairs, Leiden University, email: e.de.busser@fgga.leidenuniv.nl
Ester Herlin-Karnell
Affiliation:
Ester Herlin-Karnell is Professor of EU Constitutional Law and Justice and a University Research Chair at the VU University Amsterdam, email: e.herlinkarnell@vu.nl

Extract

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This special issue aims to investigate the regulatory challenges facing the EU with regard to security governance in the broad area of the fight against financial crimes and by adopting a wider outlook on how to map and understand these phenomena in their salient contexts. In recent years, security as a key word can be witnessed as increasingly penetrating policies on a national, international, and supranational level. This development is also visible in EU policies, inter alia in the EU's policy concerning the area of freedom, security, and justice (AFSJ). Coupling the word security to the concept of governance in the somewhat thought-provoking phrase “security governance” prominently cements its position in the entirety of processes and mechanisms that steer people as well as corporations or markets. Security in the EU internal context concerns to a great extent the fight against terrorism and its financing as well as the policing of EU borders. Security in this regard concerns the structure of EU law and how it can be justified at the macro-level.

Type
Articles
Copyright
Copyright © 2018 by German Law Journal GbR 

References

1 See Alemanno, Alberto & Spina, Alessandro, Nudging Legally: On the Checks and Balances of Behavioral Regulation, 12 Int'l J. Const. L., 429–56 (2014) (providing example theories on the use of nudging in administrative law).Google Scholar

2 See Lessig, Lawrence, The New Chicago School, 27 J. Legal Stud., 661–91 (1998).Google Scholar

3 See Mülbert, Peter & Citlau, Ryan, The Uncertain Role of Banks’ Corporate Governance in Systemic Risk Regulation (European Corp. Governance Inst., Working Paper No. 179, 2011), https://ssrn.com/abstract=1885866.Google Scholar

4 See Denolf, J.M. et al., The Role of Governance Structures in Supply Chain Information Sharing, J. on Chain & Network Sci., 8399 (2015).Google Scholar

5 For example, the recently adopted (fifth) anti-money laundering directive: Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018, amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU, 2018 O.J. (L 156).Google Scholar

6 See Case C-317/04 Parliament v. Council, 2005 E.C.R. I-02457; Case C-318/04, Parliament v. Council, 2005 E.C.R. I-02467; and Case C-362/14, Schrems v. Data Prot. Comm'r, ECLI:EU:C:2015:650; see also Data Prot. Comm'r v. Facebook Ireland Ltd. & Schrems, [2018] No. 4809 P. (H. Ct.) (Ir.) (discussing the most recent referral of the follow-up Schrems II case by the Irish High Court to the CJEU and the appeal against this referral); Data Prot. Comm'r v. Facebook Ireland Ltd & Schrems, 2018 No. 2018/68 (SC) (Ir.).Google Scholar

7 See Case C-293/12 Dig. Rights Ir. et al. v. Minister for Commc'n, Marine & Nat. Res., ECLI:EU:C:2014:238.Google Scholar

8 For the definition offered by the Financial Conduct Authority, see Financial Conduct Authority, Financial Services Authority Handbook (2001), https://www.handbook.fca.org.uk/handbook/glossary/G416.html.Google Scholar

9 The EU has a more concrete attempted definition, Directive 2017/541 on Combating Terrorism and Replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA. See e.g., Feinberg, Myriam, Sovereignty in the Age of Global Terrorism (2016); Poli, Sara, The EU External Anti-Terrorism Policy in Its External AFSJ Policy, in The European Union as an Area of Freedom, Security and Just. 389, 389–416 (Maria Fletcher, Ester Herlin-Karnell & Claudio Matera eds. 2016); Cian Murphy, EU Counter-Terrorism Law: Pre-Emption and the Rule of Law (2012); Maria O'Neil, The Evolving EU Counter-Terrorism Legal Framework (2011); and Christina Eckes, EU Counter-Terrorist Policies and Fundamental Rights (2009).Google Scholar

10 Council Regulation 2017/1939 of 12 October 2017, Implementing Enhanced Cooperation on the Establishment of the European Public Prosecutor's Office, 2017 O.J. (L 283).Google Scholar

11 Case C-293/12 Dig. Rights Ir. et al. v. Minister for Commc'n, Marine & Nat. Res., ECLI:EU:C:2014:238.Google Scholar

12 Directive 2011/36, of the European Parliament and of the Council of 5 April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting Its Victims, and Replacing Council Framework Decision 2002/629/JHA; Directive 2017/541, on Combating Terrorism and Replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA.Google Scholar

13 See e.g., Teubner, Gunther, Substantive and Reflexive Elements in Modern Law, in The Law and Society Canon 75, 75–122 (Carroll Seron, ed., 2006).Google Scholar

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